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2012 DIGILAW 524 (ORI)

Laxmipriya Mistri v. Padmolochan Rana

2012-11-30

SANJU PANDA

body2012
JUDGMENT S. PANDA, J. 1. The petitioners in this writ petition challenges the order dated 20th April, 2012 passed by the learned Additional Civil Judge (Senior Division), Balasore in Civil suit No. 93/1985-1 F.D. rejecting the petition filed by them under Order 1, Rule 10 read with Order 23, Rule 1-A of the Civil Procedure Code to transpose defendant Nos. 3 and 4 as the decree holders. 2. The facts leading to the present writ petition are as follows:– Opposite party No.1 who was defendant No.1 filed final decree proceeding arising out of Title Suit No. 93/89-1 to execute the decree in a suit for partition. A commissioner was deputed for the said purpose. However, the final decree proceeding could not be completed. During pendency of the said proceeding, a receiver was appointed in pursuance of the order dated 30.10.2006 passed by this Court in W.P.(C) No 2941 of 2005. Thereafter, the Court below by order dated 18.4.2012 in Interim Application No. 17 of 2002 under Order 39, Rules 1 and 2 of the Civil Procedure Code directed the parties to maintain status quo. While the matter stood thus, opposite party No.1 to defeat the order passed by the Court filed an application to withdraw the final decree proceeding on the ground that he was suffering from various diseases and final decree had been continuing for a considerable length of time and due to formal defects. The said application was resisted by the petitioners. They also filed an application under Order 1, Rule 10 read with Order 23, Rule 1-A of the Civil Procedure Code to transpose them as decree holders and continue the proceeding. They also stated that since the final decree proceeding is continuing for a considerable length of time and the original plaintiff and defendant No.1 have colluded with each other, it will be proper to transpose defendant Nos. 3 and 4 as decreed holders for giving finality to the proceeding. The said application was rejected by the Court below by the impugned order. 3. Learned counsel for the petitioners submitted that in a suit for partition, there is no distinction between the plaintiff and the defendant and any of the parties can take position of the plaintiff. He further submitted that share of the parties have already been decided in a preliminary decree. 3. Learned counsel for the petitioners submitted that in a suit for partition, there is no distinction between the plaintiff and the defendant and any of the parties can take position of the plaintiff. He further submitted that share of the parties have already been decided in a preliminary decree. Therefore, in the final decree proceeding, the same is to be carved out only. Thus, the Court below should not have allowed the application for withdrawal of the final decree proceeding. Therefore, the impugned order is liable to be quashed. In support of his contentions, he has cited the decisions of this Court in the case of Gokulananda Jena vs. Jadunath Jena & others reported in 2002 (II) OLR 453 , Mahitosh Sinha vs. Shyamapada Sinha & others reported in 2005 (Supp.) OLR 958, Bholanath Mohanta & others vs. Sridhar Mohanta & others, 82 (1996) CLT 582, Natabar Majhi & others vs. Bata Majhi & reported in 2007 (II) CLR 741 & 2007 (Supp. II) OLR 736. Learned counsel for opposite party No.1, however, supporting the impugned order submitted that since opposite party No.1 has filed the final decree proceeding, the Court below rightly permitted opposite party No.1 to withdraw the same and it is open to the other parties to the said proceeding to initiate the final decree proceeding. In support of his contention, he has cited a decision of the apex Court in the case of M/s. Hulas Rai Baij Nath vs. Firm K.B. Bass & Co. reported in AIR 1968 SC 111 . 5. From the rival submissions of the parties and on perusal of the record, it appears that this Court on 9.5.2012 stayed the further proceeding of the final decree. On 19.10.2012, this Court directed the parties to maintain status quo as on date over the disputed property since opposite party No.1 was continuing with some construction work over the disputed property. From the narration of facts, as stated in the above paragraphs, it is clear that the suit was filed for partition in which preliminary decree was passed. Opposite party No.1 has filed the final decree proceeding. While the final decree proceeding was continuing, status quo order was passed by the Court below on 18.4.2012. From the narration of facts, as stated in the above paragraphs, it is clear that the suit was filed for partition in which preliminary decree was passed. Opposite party No.1 has filed the final decree proceeding. While the final decree proceeding was continuing, status quo order was passed by the Court below on 18.4.2012. Being aggrieved by the said order of status quo, opposite party No.1, who has filed the final decree proceeding, made an application for withdrawal of the proceeding on various grounds. 6. Law is well settled that in a suit for partition, the position of plaintiff and defendant is almost similar. The Court decrees the suit in preliminary form declaring the share of the parties. Accordingly, the parties are at liberty to effect partition or to ask for appointment of a Commission for partition to draw a final decree in terms of the aforesaid shares. Law is well also settled that at the time of allotment of shares, steps should be taken that the existing possession of the parties is maintained as far as practicable. 7. Since the plaintiffs and the defendants have same right to claim partition, it is not material as to what manner the parties are arrayed as plaintiffs and the defendants in the suit. Even the defendants can be transposed as plaintiffs and can continue the suit, if they feel that the plaintiffs are not continuing the suit in their interest and the plaintiffs have no absolute right to withdraw the suit/proceeding. 8. This Court in the case of Gokulananda Jena's case (supra) and Mahitosh Sinha's case (supra) held that in a suit for partition of immovable property, the plaintiff has no absolute right to withdraw a suit. While rendering the said decision, this Court has also taken into consideration the decision of the Privy Council in the case of Bhupendra Narayan Sinha vs. Rajeshwar Prasad, AIR 1931 PC 161, wherein it was held that transposition of a party under Order 1 Rule 10 of the Civil Procedure Code should be allowed where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings. 9. 9. In the case of Natabar Majhi's case (supra) this Court has also held that in a suit for partition, the plaintiffs and the defendants have the same right to claim partition and in such a situation, plaintiffs have absolutely no right of withdraw as the defendants can be transposed as plaintiffs and can continue the suit if they feel that the plaintiffs are not interested to continue the suit. Thus, under such a situation, plaintiffs have absolute no right to withdraw the suit under Order 23 Rule 1 (3) of the Civil Procedure Code. It is the duty of the Court to feel satisfied that there exist proper grounds/reasons for granting such permission for withdrawal by merely stating that grant of permission will not prejudice the defendants, is not sufficient compliance with the statutory mandate. The Court is to discharge the duty mandated under the provision of Code after taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order 23. Rule 1 is filed by the plaintiffs in a belated stage during final decree proceeding after the preliminary decree was passed. Defendants accrue a right by virtue of preliminary decree. To grant leave in that stage would result in giving opportunity to plaintiffs to avoid the decree against him and seek a fresh adjudication of the controversy on a clean slate. It may also result the defendants to loose the advantage of adjudication of dispute by the Court. 10. The said view was also taken by the apex Court in Hulas Rai Baij Nath's case (supra), cited by the opposite parties, wherein it was held that in a suit for partition, if a preliminary decree is passed declaring and defining the shares of the several parties, the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff, for the obvious reason that the rights declared in favour of the defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed. 11. 11. In view of the above position of law and since the Court below erroneously allowed the application filed by opposite party No.1 to withdraw the final decree proceeding and rejected the application to transpose the petitioners as the decree holders, this Court sets aside the impugned order and allows the application of the petitioners to transpose them as decree holders and directs the Court below to proceed with the final decree proceeding in accordance with law. The writ petition is accordingly allowed. No costs. Petition allowed.